PR. COMMISSIONER OF INCOME TAX - DELHI - 2 vs. M/S BECTON DICKINSON INDIA PVT. LTD.

$~12 * IN THE HIGH COURT OF DELHI AT NEW DELHI + ITA 187/2018

PR. COMMISSIONER OF INCOME TAX - DELHI - 2 ..... Appellant

Through: Mr. Zoheb Hossain, Sr. Standing Counsel.

versus

M/S BECTON DICKINSON INDIA PVT. LTD. ..... Respondent

Through:

CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE A. K. CHAWLA

O R D E R %

16.02.2018

This appeal under Section 260-A of the Income Tax Act, 1961 questions the Income Tax Appellate Tribunal’s (ITAT) decision, ruling out certain comparables.

This Court at the outset notices that in ITA 48 of 2018 an identical question had arisen with respect to the exclusion of the same comparables. On 16.01.2018 while disposing of that appeal (Pr. Commissioner of Income Tax-2 vs. M/s. Becton Dickinson India Pvt. Ltd.), the Court had observed as follows:- “2. The assessee engages itself in the manufacturing and trading of medical devices and diagnostic equipments which included injection systems, insulin syringes, hypo syringes, hypo needles etc. It is a subsidiary of Becton Dickinson Mauritius Ltd. which in turn is a subsidiary of Becton Dickinson and Company, USA. The initial transfer pricing report filed by the assessee and relied upon before the TPO included Span Diagnostic Limited, Hicks Thermometers (India) Ltd. and Centenial Surgical Suture Ltd. as comparables.

These were directed to be excluded by the TPO on the ground of functional dissimilarities. The rationale was that the Span Diagnostic mainly manufactures diagnostic regents, elissa kits for AIDS; Hicks Thermometers also manufacturing elissa kits, thermometers and Centenial Surgical was manufacturing surgical suture. The CIT (A) was of the opinion that the exclusion of these three comparables was not justified as all the companies including the assessee were involved in manufacturing and sell of medical and diagnostic equipment. The ITAT agreed with the conclusion of the appellate Commissioner. 3. Having considered the submissions and the materials on record, the Court is of the opinion that the concurrent findings in this case do not call for interference. The exclusion or inclusion of one or the other comparable would by itself not constitute a question of law unless it is shown that there are important functional dissimilarities or that vital material facts which go to the route of profitability or other material circumstances are involved. In the present case, the comparables as well as the assessee are all manufacturers of medical/surgical equipments and, therefore, inclusion of three comparables is based upon appreciation of findings of fact; they do not call for interference. The appeal is, therefore, dismissed.”

The same reasoning applies in the present case. Consequently, no question of law arises and the appeal is therefore dismissed.

S. RAVINDRA BHAT, J

A. K. CHAWLA, J FEBRUARY 16, 2018/nn